92 Decision Citation: BVA 92-19892
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-02 332 ) DATE
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THE ISSUE
Entitlement to service connection for traumatic arthritis of
the right shoulder and elbow.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant.
ATTORNEY FOR THE BOARD
C. Chaplin, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of July 31, 1991,
from the Philadelphia, Pennsylvania, regional office (RO).
The notice of disagreement was received on August 30, 1991.
The statement of the case was issued on October 29, 1991.
The substantive appeal was received on November 5, 1991. A
hearing was held before a hearing officer at the RO in
December 1991. The appeal was received at the Board on
March 12, 1992, and docketed on March 19, 1992. The
appellant has been represented throughout his appeal by The
American Legion, to which the file was referred. That
organization submitted additional written argument to the
Board on or about May 11, 1992, and the case is now ready
for appellate review.
The veteran had active service from October 1, 1942, to
January 29, 1946.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO erred in not granting
service connection for traumatic arthritis of the right
shoulder and elbow. He contends that he injured his right
arm during service when he fell into a pit.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. § 7104
(1992), following review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
granting of service connection for traumatic arthritis of
the right shoulder and elbow.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. No continuity of symptomatology for an alleged right arm
injury in service is shown in the record after service .
CONCLUSION OF LAW
Service connection for traumatic arthritis of the right
shoulder and elbow is not warranted. 38 U.S.C. §§ 1101,
1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.301, 3.303(b),
3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We have found that the appellant's claim is "well grounded"
within the meaning of 38 U.S.C. § 5107(a); that is, he has
presented a claim that is plausible. Furthermore, the
veteran has not indicated that any probative evidence not
already associated with his claims folder is available, and
we accordingly find that the duty to assist him, mandated by
38 U.S.C. § 5107(a), has been satisfied.
Under the regulations, service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service and not the result of the veteran's
own willful misconduct. 38 C.F.R. § 3.301.
To establish service connection for a condition, symptoms
during service, or within a reasonable time thereafter, must
be identifiable as manifestations of a chronic disease or
permanent effects of any injury. Further, a present
disability must exist and it must be shown that the present
disability is the same disease or injury, or is the result
of disease or injury incurred in or made worse during the
veteran's military service.
Furthermore, to establish that a chronic disease was
manifested during service there is required a combination of
symptoms sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a
diagnosis which includes the word "chronic". Continuity of
symptoms is required only where the condition noted during
service is not, in fact, shown to be chronic or where the
diagnosis of chronicity may be legitimately questioned.
When the fact of chronicity in service is not adequately
supported, then the showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b).
In addition, where a veteran served 90 days or more during a
period of war and arthritis becomes manifest to a degree of
10 percent within one year from date of termination of such
service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of
such disease during the period of service. This presumption
is rebuttable by affirmative evidence to the contrary.
38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
It is unfortunate that service medical records can not be
located. The file does contain information from hospital
admission cards created by the office of the Surgeon General
for the year 1944. Noted was an admission in November 1944
for a periapical abscess, possibly at Ft. George G. Meade,
Maryland. This record contains no notation of a right arm
injury as described by the veteran.
No evidence was submitted that arthritis was manifested in
the post-service presumptive period.
The veteran was afforded a Department of Veterans Affairs
(VA) medical examination in June 1991. Findings showed no
effusion or erythema of the right shoulder or elbow. The
right shoulder had flexion and abduction of 90o. The right
elbow had 0o of external rotation, 90o of internal rotation,
flexion of 70o, supination of 40o and pronation of 70o. In
addition, the veteran complained of pain in the entire right
arm, and stated that he slept with
his arm on a pillow. The examiner noted that the veteran
could not raise his right arm above chest level; the right
arm was one inch shorter than the left, and the grip was 5/5
bilaterally. The examiner's diagnosis was traumatic
arthritis of the right shoulder and elbow.
The veteran testified at a hearing in December 1991, of
falling into a pit and hurting his arm in 1944 at Fort
Meade, Maryland. He related going to the infirmary where
the medics gave him some linament to rub on the arm. He
stated that after the accident he was unable to raise his
arm above his chest level. After the incident, he stated
that he did not go for any further treatments for his right
arm condition. He did recall being hospitalized at
Fort Meade for approximately four days for a toothache. He
further indicated that he held the position of "army
artificer" throughout his entire military service. He
stated that he did not complain at discharge about any
problems with his arm as he wanted to get home. He recalled
having a physical examination when he returned to his job
after service, and no mention was made of problems with his
shoulder. He further stated that after discharge he did not
go for treatment for his arm. He recalled going to the VA
Medical Center in Wilkes-Barre in 1970 for examination of
his arm, and being treated twice in 1991.
We note that on the veteran's Separation Qualification
Record, the military occupational specialty, Code 511, is
stated as Armorer. The summary of military occupations
states:
Served with the Army Ground Forces, at
Fort Meade, Maryland. Maintained,
serviced, and made minor repairs on
small arms weapons. Disassembled such
weapons as rifles, carbines, pistols,
and machine guns. Replaced or
repaired defective parts. Also
performed carpentry and painting
duties as directed.
The record includes a hospitalization report for a right
inguinal herniorrhaphy in January 1971, and the findings of
the initial VA medical examination for pension purposes
conducted in April 1971. In April 1971, the veteran gave
his medical history as:
Entered Mercy Hospital April 10, 1970
for cirrhosis, dropsy, malnutrition,
yellow jaundice. ....(r)upture of
portal vein treated.... Treated also
for neuritis. Returned ... for
hernia operation....
He listed the complaint as:
Pain and tenderness of legs, feet.
Weakness or paralysis numbness,
tingling, and other disturbances.
The veteran's service medical records are not available and
in the Surgeon General's records for 1944, there is no
notation of complaints of or treatment for a right arm
injury. The veteran testified that he did not seek medical
treatment for his right arm after service until many years
after discharge from service, approximately 1970. Neither
the hospitalization report in 1971 nor the findings of the
April 1971 VA medical examination contain any notation of a
disability of the veteran's right arm. The recent VA
medical examination in May 1991, contains the first medical
evidence of a right arm disability, and this is many years
after service, and the alleged inservice injury.
In the absence of a showing of continuity of symptomatology,
service connection must be denied.
ORDER
The benefit sought on appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under *38 U.S.C. §7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988 (see sec. 402 of the Veterans' Judicial Review Act
(Pub. L. 100-687)). The date which appears on the face of
this decision constitutes the date of mailing and the copy
of this decision which you have received is your notice of
the action taken on your appeal by the Board of Veterans'
Appeals.